{"id":42884,"date":"2009-05-07T00:00:00","date_gmt":"2009-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aayakar-bhavan-vs-98-on-7-may-2009"},"modified":"2017-03-23T23:26:47","modified_gmt":"2017-03-23T17:56:47","slug":"aayakar-bhavan-vs-98-on-7-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aayakar-bhavan-vs-98-on-7-may-2009","title":{"rendered":"Aayakar Bhavan vs 98 on 7 May, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Aayakar Bhavan vs 98 on 7 May, 2009<\/div>\n
Bench: F.I. Rebello, R.S. Mohite<\/div>\n
                                          -1-\n\n\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                  ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                                                      \n                    INCOME TAX APPEAL NO. 1005 OF 2008\n\n\n\n\n                                                                       \n    The Commissioner of Income Tax-9 )\n\n    Aayakar Bhavan, M.K. Road,                                                  )\n\n\n\n\n                                                                      \n    Mumbai 400 020.                                                             ).. Appellant\n\n\n\n                        Versus\n\n\n\n\n                                                         \n    M\/s. Ajanta Pharma Ltd.    ig                                               )\n\n    98, Charkop Industrial Estate,                                              )\n\n    Kandivali (West),Mumbai 400 061. )...Respondent\n                             \n    Mr. Parag Vyas with Mr.Suresh Kumar with Mr. P.S.\n      \n\n    Sahadevan for the Appellant.\n\n    Mr.J.D. Mistry with Mr.A.K. Jasani and Mr. T.C.\n   \n\n\n\n    Tripati for Respondent.\n\n\n                                          CORAM: FERDINO I. REBELLO &\n                                                     R.S.MOHITE, JJ.\n<\/pre>\n
                                          DATED: 7th May, 2009<\/p>\n
    ORAL JUDGMENT (Per F.I. Rebello,J.):<\/p>\n
    .                         Admit on the following questions:\n<\/p>\n<\/p>\n
                                  \"1.           Whether       on        the         facts         and          in       the\n\n                  circumstances                 of          the    case       and     in                law             the\n\n                  ITAT            was           justified     in        approving           the             Order        of\n\n                  the            CIT(A)              in     allowing          Respondent               to           exclude\n\n                  export                  profits            for       the     purpose            of                section\n\n\n\n\n                                                                       ::: Downloaded on - 09\/06\/2013 14:35:26 :::<\/span>\n                                                 -2-<\/span>\n\n\n                  115            JB              at            the            figure                  other               than             that           allowed\n\n                  u\/s.                                                               80                               HHC                                  (1B)?\n\n\n\n\n                                                                                                                                         \n                                  2.                   Whether                  in              law           for              the              purpose        of\n\n                  calculating                    book                 profit                    under                 section                    115           JB\n\n\n\n\n                                                                                                \n                  of                the                     Income                   Tax                   Act,                      1961                  under\n\n                  Explanation                         1                    sub            clause              (iv)                     the                 export\n\n\n\n\n                                                                                               \n                  profits             to               be              excluded                   from                the                 book             profits\n\n                  would                    be                   the           export             profits             allowed                      as            a\n\n                  deduction                 u\/s.                           80               HHC                  after                 restricting            the\n\n\n\n\n                                                                    \n                  deduction                      as               per                     the                 provisions                        of            sub\n\n                  section         ig       1B             of         section              80          HHC             of         the            Act            or\n\n                  the                  export                         profits             calculated                 as                    per                sub\n\n                  section                  3                   and         3A             of          section             80         HHC                   before\n                                \n                  applying                            the                          restriction                contained                   in                  sub\n\n                  section                        1B                      of                       section                            80                   HHC?\"\n      \n\n\n    2. A few facts may be set out :\n   \n\n\n\n    .                    The              Assessee                   company                   was             assessed                   under           Section\n\n\n\n\n\n    115          JB              of            the          Income             Tax             Act         for                   the                   assessment\n\n    year                 2001-2002.                              While                    computing                   the                 book            profits,\n\n    under             Section                    115            JB            it          claimed              that                       the              entire\n\n\n\n\n\n    export             profits                   as            computed                under             Section                          80                HHC\n\n    should                  be             deducted                   and                 not            percentage                       deduction            as\n\n    provided                under               Section               80             HHC                (1B).                          The             Assessing\n\n    Officer              did               not                 accept                      the                same.                            The          A.O.\n\n<\/pre>\n
    restricted the deduction under Section 80 HHC to<\/p>\n
    80%.\n<\/p>\n
                                                                                                ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                          -3-<\/span><\/p>\n
    .                     The                       assessee                       aggrieved,             preferred                          an                appeal<\/p>\n
    before                  the                           C.I.T.                        (Appeals).                         After                         considering<\/p>\n
    the                    contentions                         C.I.T.(A)                was             pleased                     to             hold           that<\/p>\n
    the                  entire                           profits            from               exports              are              eligible                     for<\/p>\n
    deduction in terms of Clause (4) of Explanation (1)<\/p>\n
    to Section 115JB.\n<\/p>\n<\/p>\n
    .                    Revenue                     aggrieved                   preferred              an                appeal                  before           the<\/p>\n
    I.T.A.T.                                    The                         learned                 tribunal              after                          considering<\/p>\n
    the              various                              contentions              as           also           the          order                 of               the<\/p>\n
    Special                    Bench                in           Dy.                     Commissioner,                    Range                 III               Vs.<\/p>\n
    SIMCOM                 Ltd.            ig             (2007)                  106         ITD        193          (Mum)                       (SB)            was<\/p>\n
    pleased                to                       dismiss                      the          appeal           preferred                          by               the<\/p>\n
    Revenue                by                       order                   dated             30.11.2007.                      It                  is             this<\/p>\n
    order which is the subject matter of the present<\/p>\n
    appeal.\n<\/p>\n<\/p>\n
    3.                     At              the            hearing            of          this          appeal             on             behalf           of       the<\/p>\n
    Revenue,                   it                   has                   been          submitted                    as                   under:-                 The<\/p>\n
    export           profits                   to              be            excluded                  from                the                 book            profits<\/p>\n
    would                 be                     export                     profits             allowed          as                      a                 deduction<\/p>\n
    under                   Section                        80               HHC                         after                    restricting                       the<\/p>\n
    deduction                             as              per              the            provisions                 of                  sub             section(1B)<\/p>\n
    of               Section                   80HHC                 of           the           Act          and            not                export          profits<\/p>\n
    calculated                      as           per            sub          section             3        and              3A             of                   Section<\/p>\n
    80HHC                                without                    applying                  the            restrictions                                  contained<\/p>\n
    in        sub         section                   1B          of          section              80          HHC                 as            contended           on<\/p>\n
    behalf          of              the             assessee.                           Section            80              HHC                    sub          section<\/p>\n
    1B               was                         introduced                by           the          Finance              Act             with                  effect<\/p>\n
    from 1.4.2001 so as to phase out the deduction<\/p>\n
                                                                                                     ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                  -4-<\/span><\/p>\n
              completely by assessment year 2005-06.<\/p>\n
    . Section 115 JB was introduced by Finance Act,<\/p>\n
    2000 with effect from 1.4.2001 i.e. with effect<\/p>\n
    from the assessment year 2001-02 replacing the<\/p>\n
    erstwhile section 115JA. As per memorandum of<\/p>\n
    Finance Bill 2000, the reason to introduce the said<\/p>\n
    section was to simplify the Minimum Alternate Tax<\/p>\n
    (MAT).               The said Memorandum clarifying the<\/p>\n
    provisions of the Finance Bill 2000 sets out<\/p>\n
    “Export provisions under Section 80 HHC were kept<\/p>\n
    out of the purview of the provisions during the<\/p>\n
    period of phasing out of deductions available under<\/p>\n
    those provisions.” Considering the language of<\/p>\n
    Explanation (1) of sub clause (iv), the profits<\/p>\n
    eligible for deduction under Section 80 HHC, as<\/p>\n
    used in Section 115JB refer to profits allowed as<\/p>\n
    deduction under Section 80 HHC. Reference is then<\/p>\n
    made to the meaning of the expression “Eligible”<\/p>\n
    from dictionaries.                                    The   eligible deduction<\/p>\n
    therefore under Section 80 HHC as per section<\/p>\n
    115JB, is only that amount which is allowed as a<\/p>\n
    deduction u\/s. 80 HHC under normal provisions of<\/p>\n
    the Act. The expression “Profits eligible for<\/p>\n
    deduction under section 80 HHC” can only mean that<\/p>\n
    the term refers to the export profits actually<\/p>\n
    allowed as a deduction under section 80 HHC as<\/p>\n
    otherwise an absurdity is created to the extent<\/p>\n
    that while no full deduction is allowed of export<\/p>\n
    profits under section 80 HHC, for the purpose of<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                  -5-<\/span><\/p>\n
    section 115 JB such profits are calculated and<\/p>\n
    excluded from book profits which was never the<\/p>\n
    intention of the legislature as brought out from<\/p>\n
    the Memorandum explaining the Finance Bill 2000.<\/p>\n
    While construing or interpreting the provisions of<\/p>\n
    law, an interpretation that results in an absurd<\/p>\n
    situation is to be avoided and preference is to be<\/p>\n
    given to a workable interpretation bearing in mind<\/p>\n
    that MAT was introduced to ensure that companies<\/p>\n
    which take advantage of deductions available under<\/p>\n
    normal provisions of the Act are required to pay<\/p>\n
    some minimum tax. In the alternative it is<\/p>\n
    submitted that even if the term “profits” eligible<\/p>\n
    for deduction under section 80 HHC” is referable to<\/p>\n
    the profits calculated before applying the<\/p>\n
    limitation specified in sub section 1B of section<\/p>\n
    80 HHC, one has to bear in mind the expression<\/p>\n
    “subject to the conditions specified in section 80<\/p>\n
    HHC”.              The dictionary meaning of the word<\/p>\n
    “condition” is sought to be relied upon. It is<\/p>\n
    therefore, submitted that sub section 1B is the<\/p>\n
    restriction and limitation to the deduction under<\/p>\n
    section 80 HHC and has to be considered while<\/p>\n
    calculating export profits from the book profits<\/p>\n
    for the purpose of section 115JB. That also<\/p>\n
    becomes apparent from the examination of the<\/p>\n
    provisions of section 115 JA.                                   The entire<\/p>\n
    provisions of 80 HHC and section 115 JB would have<\/p>\n
    to be considered while construing the provisions.<\/p>\n
    The Finance Minister’s speech and the Memorandum<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                             -6-<\/span><\/p>\n
    explaining the clauses cannot by itself be used to<\/p>\n
    interpret the literal meaning of the Act. Reliance<\/p>\n
    is placed in the judgment of the Supreme Court in<\/p>\n
    the case of P.V. Narsimha Rao Vs. State, AIR 1998<\/p>\n
    SC 2120. It Is, therefore, submitted that<\/p>\n
    considering the language of the two provisions, it<\/p>\n
    leads to the only conclusion that what has to be<\/p>\n
    reduced is the amount of export profits eligible<\/p>\n
    for deduction in terms of sub section 1B of Section<\/p>\n
    80 HHC.\n<\/p>\n<\/p>\n
              4.             On          the    ig   other              hand              on          behalf           of             the          assessee           the<\/p>\n
              learned                      counsel                       submits                              that                    considering                     the<\/p>\n
              expression                   “the                        profits                       eligible                         for                     deduction<\/p>\n
              under           Section                80HHC,                      the                 A.O.                       ought               to              have<\/p>\n
              allowed                the                     entire           amount.                         It          is          explained                      that<\/p>\n
              the                 purpose              of              reduction                of            book               profits                         required<\/p>\n
              by               clause           (iv)              to          explanation                to           Section               115JB                      is<\/p>\n
              to         ensure            that               the             export                  profits                  are           not                subjected<\/p>\n
              to              “MAT”.                         The             legislature               has           repeatedly                taken                   a<\/p>\n
              conscious                     decision                    to             exclude                export                 profits                        from<\/p>\n
              taxation         under              the               normal                 provisions                 of              the               Act          and<\/p>\n
              from              MAT                     levied               under             the          special                     provisions                     of<\/p>\n
              inter               alia                  section              115JB.                         This           intention               of                 the<\/p>\n
              legislature                  it           is              submitted                has               been              made               clear         by<\/p>\n
              the           repeated               insertion                   of               clauses                   similar                  to              clause<\/p>\n
              (iv)                 and            explicit               mention                of            such               intention               by           the<\/p>\n
              Finance               Minister                      at                   various          times.                              The                    policy<\/p>\n
              adopted                           by                     the                legislature                     of                encouraging\/boosting<\/p>\n
              exports               was                     considered               to          be           of                     such                  importance<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                     -7-<\/span><\/p>\n
    that         the                    legislature                      wished                                   to                 forego                             taxes<\/p>\n
    thereon,                including                     MAT.                                     The            phrase                       “amount                     of<\/p>\n
    profits                  eligible                          for            deduction                         under                      section                        80<\/p>\n
    HHC”                used                     in            clause              (iv)            to            describe                      the                     export<\/p>\n
    profits             to                  be                       excluded                from                MAT                      is                     necessarily<\/p>\n
    different                   from                the               phrases                    used               in            the               various              sub<\/p>\n
    sections      of           Section                80              HHC                   of             the           Act.                        The              reasons<\/p>\n
    being             the                  phraseology                            used                     in                 clause                      (iv)             is<\/p>\n
    required                       to               encompass                         all               the               qualitative                                 aspects<\/p>\n
    of           export                 profits            in           section                   80             HHC              i.e.                        the        type<\/p>\n
    of            profit                which              got               benefit               under                 section               80                      HHC.<\/p>\n
    Thus                (a)           igprofits             derived                   from                 the            export               of                      goods<\/p>\n
    and                merchandise                              and                (b)             profits               of             the                         permitted<\/p>\n
    type.               The                    phrase                  has                   been               used               to                    take            into<\/p>\n
    account           the               type              of             profit                    above                  mentioned                       which            is<\/p>\n
    derived                  from               the             activity                 above                   mentioned.                              It                is<\/p>\n
    for          this                    reason                       that            even                        the                   predecessors                       to<\/p>\n
    section                   115JB,                the              same                   phrase                was             used                   to           achieve<\/p>\n
    this         purpose.                                 As                      a          matter               of                 construction                        and<\/p>\n
    plain                   English                 usage              the                  said                phrase             can                   never           take<\/p>\n
    within       its               ambit               the               quantum                           of            deduction                       from           such<\/p>\n
    profits.                        Reference                                is                         made                         to                          expression<\/p>\n
    “eligible”                     in                          its            ordinary                      dictionary                   meaning                           to<\/p>\n
    which        we                shall              advert                 latter.                             Thus              it               is              submitted<\/p>\n
    that         it                  would             be            beyond                 any             doubt          that                     the                 word<\/p>\n
    “eligible”                has              to          be            read                to             mean              type             or             class        or<\/p>\n
    nature                    of               profits                i.e.                             a               qualitative                               description<\/p>\n
    of profits and can never take within its ambit a<\/p>\n
    particular proportion or quantum thereof.<\/p>\n
                                                                                                        ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                        -8-<\/span><\/p>\n
    4(b).                The               quantum                      of              profits                in           respect                   of               which        a<\/p>\n
    deduction                  is                      allowed                    under              section                80              HHC                  of               the<\/p>\n
    Act                       is                      separately                                      quantified\/provided                                         for              in<\/p>\n
    section              80                      HHC                (1B)                 of          the             Act              and             the                    resultant<\/p>\n
    figure               on               applying                  this            sub               section                  can            only                be                a<\/p>\n
    sub             class                 or               part              of               the          type                 of           profits                          eligible<\/p>\n
    which                can                         (if            a             100%               deduction                   is           allowed)                          equal<\/p>\n
    the           quantum                            of           the             class             but          must                as           a         matter                 of<\/p>\n
    language                        be               something                      different                   from                  the              class                       of<\/p>\n
    profit.                           This                   distinction                            between                      the                   class\/type                  of<\/p>\n
    profit              as                      well                         as               the          quantum\/extent                                   of                  profit<\/p>\n
    which           have                  ig    to                  be             deducted                is            also          clear                      from              a<\/p>\n
    perusal                   of                          section                 80                HHC              (1)               which                            specifically<\/p>\n
    allows                    “….                         a              deduction                      to              the               extent                of           profits<\/p>\n
    referred                  to           in              sub             section                  1(B)”.                           There              can              be        no<\/p>\n
    doubt                          therefore,                     that                  the                extent                     is               different                from<\/p>\n
    the           profit.                                  The                      said                        distinction                           between                     the<\/p>\n
    class\/type                 and                         the                      extent                 of             deduction                           is                 also<\/p>\n
    clear        from               the              opening                   words                  of                 section              80                 HHC             (1B)<\/p>\n
    of            the                       Act                 which               clearly                specifies                   the             amount                      of<\/p>\n
    the           deduction                           by                     applying                 a                    percentage                              to             the<\/p>\n
    profit         eligible                      for\/entitled                            to                 deduction.                                            It            must<\/p>\n
    inexorably                  follow                          a                       fortiori                                that                       the                  profit<\/p>\n
    eligible       and                the                  extent                  of               the              deduction                        have              to         be<\/p>\n
    two            different                          things.                           It          must             also             be                     borne                 in<\/p>\n
    mind          that                   Section                    80                   HHC              (1B)            of                 the                  Act            was<\/p>\n
    introduced           at               the               same                  time               as              Section                  115JB                     and         if<\/p>\n
    the                   legislature                        intended                         to               reduce                      only               the              extent<\/p>\n
    of              the                              deduction                     actually                    allowed                    when                           computing<\/p>\n
    book            profit                      for                      the                 purposes               of          115JB                        it                would<\/p>\n
                                                                                                           ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                     -9-<\/span><\/p>\n
    simply                   have              done             so            by              using              identical             phrases                 in<\/p>\n
    both                     the            sections.                             The               expression                 “condition”                     in<\/p>\n
    (iv)               to                   Explanation                 I,          would                 mean                       conditions                as<\/p>\n
    specified. Quantum as set out in Section 80HHC(1B)<\/p>\n
    it is submitted is not a condition.\n<\/p>\n<\/p>\n
    4(c).                     The                   intention                       of              the          legislature                  was              to<\/p>\n
    continue                       the         exemption                     of           export                 profits             from                   MAT<\/p>\n
    despite                    the             exemption                     for              the               said           export                      profits<\/p>\n
    being                     gradually                   phased                  out               when               computing                          taxable<\/p>\n
    income                  under                   the                      normal             provisions               of                  the             Act.<\/p>\n
    Placing                        reliance\n                                          ig               on                the               Finance                 Minister's                          speech\n\n    it            is           submitted                     the             exemption               from                    MAT                 was           to\n\n    continue                until               the                   complete                        withdrawal                      of                exemption\n                                        \n    under              the                 normal                    provisions                of          the         Act.                        In          an\n\n    identical                        situation                       when                                 the                 legislature                      so\n      \n\n    intended,                        in             section                  115JA                   Explanation                    clause                    (v)\n\n    reduction          to            the            equal               in              quantum                   to           the           quantum           of\n   \n\n\n\n    deduction                       allowed                          under                the               normal              provisions                     of\n\n    the                Act,              explicit          wording                  was              used              which            made                  the\n\n\n\n\n\n<\/pre>\n
    matter clear beyond any doubt. Such wording is not<\/p>\n
    used in this case.\n<\/p>\n
    .                         Under             the             Act,               amounts                 eligible             for          a          deduction<\/p>\n
    are                 often               different                from                the              quantum                of                     deduction<\/p>\n
    actually                  allowed.                                Reliance                 is           placed             on          some                of<\/p>\n
    the                      provisions.                              Conscious                       of               the            distinction,            the<\/p>\n
    legislature                          has              continued                     the               use            of             these             phrases<\/p>\n
    in         the          said            clause              (iv).                          It           is           then           submitted            that<\/p>\n
    if                 the               interpretation               canvassed                      by            the           Income                      Tax<\/p>\n
                                                                                                     ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                           -10-<\/span><\/p>\n
    department                           is                      accepted,               the                 words                    in              clause                       (iv)<\/p>\n
    i.e.                    “….                              computed                under                (a),        (b)                and                     (c)              of<\/p>\n
    Section                      80             HHC(3)………                               ”              becomes                       otiose.                                  In<\/p>\n
    the          alternative                        if               the                phrase                              is                   not                   to           be<\/p>\n
    considered                    otiose                        then          in             order             to           apply                            80                  HHC<\/p>\n
    (1B)                    the               same                  should              have                 been                 mentioned                        in           clause<\/p>\n
    (iv)              and                      in             the          absence                of           such              mention                    the                  same<\/p>\n
    cannot              be                      applied.                                Reliance                   is        then                           placed                  on<\/p>\n
    Heydons’                Rules                        of             construction.                                        Reliance                         is                placed<\/p>\n
    on        the           judgment                     of           Kerala             High                  Court                   in              C.I.T.                      Vs.<\/p>\n
    GTN               Textiles                           Ltd.                 248             ITR              372.                        It          is                    submitted<\/p>\n
    that              the                  ig view              taken             by          the             Special                  Bench                 in                  DCIT<\/p>\n
    Vs.                Syncone                       Formulations                      106              ITD                193                  (Bom)                   as        also<\/p>\n
    DCIT Vs. Govind Rubber Ltd. 82 TTJ 615 should be<\/p>\n
    accepted.\n<\/p>\n
\n    4(d).                           It          is             lastly          submitted                     that            at                 any           rate                   if<\/p>\n
    two                      views                       are               possible                    of               interpretation                            of            clause<\/p>\n
    (iv), then the view in favour of the tax payer<\/p>\n
    ought to be adopted.\n<\/p>\n<\/p>\n
    5.                           With                the             above              background,                        let              us              now               consider<\/p>\n
    the         provisions.                                    What                the                 Legislature                          ought                  to             have<\/p>\n
    done                    or                what               language                or                 words                 or              expression                     ought<\/p>\n
    to          have                  been                     used,               is         not                    for                   the                courts                 to<\/p>\n
    consider.                            The                        duty          of          the             court,              in                        the                 event,<\/p>\n
    where                   literal                            interpretation                                       would                              defeat                      the<\/p>\n
    intent                  of                the              Legislature                   or              lead                to              an                          absurdity<\/p>\n
    or          the              like                would                   be               to                   ascertain                     the                   parliamentary<\/p>\n
    intent,                      by                      applying                  the                               rules                       of                           statutory<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                  -11-<\/span><\/p>\n
    interpretation                         as               followed                  in                   our                  jurisdiction.                                  A<\/p>\n
    word              of           caution,            it        is          only                in            the              event               when                     the<\/p>\n
    literal                   interpretation                    would                     lead                   to                  an                             absurdity<\/p>\n
    or               defeat            the              object              or                 intent               of                the                        Legislation<\/p>\n
    and              not                   otherwise.                        The                principle                  of                        all                   fiscal<\/p>\n
    legislation               is                 that                  if            the              person               sought                           to                be<\/p>\n
    taxed         comes             within             the            letter              of              the               law              he                 must          be<\/p>\n
    taxed,                 however,                          great             the              hardship                    may                 appear                        to<\/p>\n
    the        judicial        mind              to           be.                     On                 the               other               hand,               if        the<\/p>\n
    State,         seeking              to                  recover                 the                  tax,                cannot                        bring             the<\/p>\n
    subject                  within              the           letter                of               the              law,                 the                          subject<\/p>\n
    is                free,            however,
\n                                      ig                         apparently                         within                  the                spirit                         of<\/p>\n
    the            law                the                    case           might               otherwise                   appear                          to               be.<\/p>\n
    Taxing                statutes                cannot                       be                                interpreted                               on                any<\/p>\n
    presumptions                      or              assumptions.                                  The               court                 must                            look<\/p>\n
    squarely                  at           the              words              of               the              statue                   and                           interpret<\/p>\n
    them.                      It                  must               interpret                 a           taxing                   statute               in                the<\/p>\n
    light            of                what                     is          clearly                 expressed;                                       it                  cannot<\/p>\n
    imply                  anything                          which             is               not              expressed,                     it                       cannot<\/p>\n
    import                  provisions                 in            the            statutes                   so               as             to                        supply<\/p>\n
    any assumed deficiency (CST vs. Modi Sugar Mills<\/p>\n
    Ltd. AIR 1961 SC 1047.\n<\/p>\n<\/p>\n
    6. It would therefore, be gainful to refer to some<\/p>\n
    relevant provisions of Section 80HHC.<\/p>\n
                                      “80HHC.(1)                       Where                        an                     assessee,                       being              an<\/p>\n
                     Indian                  company                        or             a          person                (other                         than                a<\/p>\n
                     company)                          resident                           in             India,                 is           engaged                          in<\/p>\n
                     the                   business             of           export                  out              of             India                of                 any<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                              -12-<\/span><\/p>\n
      goods                  or         merchandise                 to             which            this                    section<\/p>\n
      applies,             there             shall,            in                  accordance                  with             and<\/p>\n
      subject                  to           the         provisions                   of           this                      section,<\/p>\n
      be allowed, in computing the total income<\/p>\n
                   of the assessee, a deduction to the extent<\/p>\n
      of profits, referred to in sub-section (1B)<\/p>\n
      derived by the assessee from the export of<\/p>\n
      such goods or merchandise:\n<\/p><\/blockquote>\n
                   Provided……….\n<\/p><\/blockquote>\n
                   (1A) …………….<\/p><\/blockquote>\n
                   (1B)               For               the         purposes              of       sub-sections                 (1)<\/p>\n
      and           (1A),                  the        extent             of         deduction                   of              the<\/p>\n
      profits              shall              be              an                   amount                  equal                to–\n<\/p><\/blockquote>\n
                   (i)              eighty            per           cent                  thereof               for              an\n   \n\n\n\n      assessment                    year           beginning                  on          the            1st          day        of\n\n      April,                                                                                                                  2001;\n\n\n\n\n\n                   (ii)            seventy            per           cent                   thereof             for               an\n\n      assessment                    year           beginning                  on          the            1st          day        of\n\n\n\n\n\n      April,                                                                                                                  2002;\n\n\n\n                   (iii)              fifty           per            cent                  thereof              for              an\n\n      assessment                    year           beginning                  on          the            1st          day        of\n\n      April,                                                                                                                  2003;\n\n\n\n                   (iv)               thirty           per           cent                      thereof          for              an\n\n\n\n\n                                                                    ::: Downloaded on - 09\/06\/2013 14:35:26 :::<\/span>\n                              -13-<\/span>\n\n\n      assessment                       year                beginning              on              the          1st           day          of\n\n      April,              2004,                    and                  no               deduction                    shall              be\n\n      allowed                    in                      respect             of         the              assessment                    year\n\n\n\n\n                                                                                                                    \n      beginning                   on               the        1st            day             of            April,          2005         and\n\n      any                              subsequent                                       assessment                                     year.\n\n\n\n\n                                                                             \n                    (2)(a)............\n\n\n\n\n                                                                            \n                    (3). ..............\n\n\n\n\n                                                    \n                    (3A) .............\n\n                   \n                    (4)                The                  deduction                   under                 sub-section                (1)\n\n      shall                      not               be             admissible                  unless                the             assessee\n                  \n      furnishes             in                 the                prescribed                  form,                  along             with\n\n      the           return                    of              income,             the                report                of            an\n      \n\n      accountant,                       as                        defined               in           the                      Explanation\n\n      below               sub-section                        (2)                  of                     Section                      2888,\n   \n\n\n\n      certiying                        that                 the                         deduction                    has               been\n\n      correctly                   claimed                          in         accordance                            with                 the\n\n\n\n\n\n      provisions                                      of                                     this                                   section.\n\n\n\n                    Provided....................\n\n\n\n\n\n                    (4A) .........................\n\n\n\n                    (4B)              For            the          purposes              of           computing               the       total\n\n      income                            under                 sub-section                     (1)              or               sub-section\n\n      (1A)             any                    income              not         charged               to               tax              under\n\n      this                       Act                               shall                             be                            excluded.\n\n\n\n\n                                                                             ::: Downloaded on - 09\/06\/2013 14:35:26 :::<\/span>\n                                                      -14-<\/span>\n\n\n\n\n                         (4C) ...................\n\n\n\n\n                                                                                                                                         \n                                         (emphasis supplied).\n\n\n\n\n                                                                                             \n    .                                   Sub section (1B) was introduced by the\n\n<\/pre>\n
    Finance                   Act,               2000            with               effect              from              3.4.2001.                           That<\/p>\n
    section             was                     applicable                    to          all,                 engaged                         in               the<\/p>\n
    business                  of              export.                        By           virtue             of           insertion                  of        sub<\/p>\n
    section                  (1B)                i.e.                      The                     sun                  set               clause,               the<\/p>\n
    deductions               of                export             profits                  was                to                be                  discontinued<\/p>\n
    from               the               ig    beginning              of           1.4.2005.                                  The                     deductions<\/p>\n
    available                       from                1st            April,              2001               was                              percentagewise<\/p>\n
    as           set              out          beginning              with           80%              for          2001              and                    ending<\/p>\n
    with         30%                    for             assessment                   year                  beginning                     on               1.4.2004.\n<\/p><\/blockquote>\n
    No deduction is available after 1-4-2005 and<\/p>\n
    subsequent years.\n<\/p>\n<\/p>\n
    7. Section 115JB was inserted by the Finance<\/p>\n
    Act,2000 with effect from 1.4.2001.<\/p>\n
                                         “115JB(1)                         Notwithstanding                              anything                          contained<\/p>\n
                  in               any               other            provision              of             this              Act,               where           in<\/p>\n
                  the                         case               of           an          assessee,               being              a                    company,<\/p>\n
                  the                           income-tax                 payable               on           the              total                        income<\/p>\n
                  as               computed                   under           this           Act              in              respect                of        any<\/p>\n
                  previous                            year                    relevant                to                      the                     assessment<\/p>\n
                  year                         commencing               on           or          after            the          1st            day                of<\/p>\n
                  April,                        2007,                   is         less          than          ten             per            cent               of<\/p>\n
                  its                         book            profit,             such            book              profit               shall                  be<\/p>\n
                                                                                             ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                              -15-<\/span><\/p>\n
      deemed            to           be             the                     total            income              of        the<\/p>\n
      assessee          and           the               tax               payable           by           the          assessee<\/p>\n
      on              such          total           income                shall        be          the         amount      of<\/p>\n
      income-tax              at            the               rate                of         ten           per           cent.<\/p><\/blockquote>\n
                    (2) Every assessee, being a company, shall,<\/p>\n
      for the purposes of this section, prepare<\/p>\n
      its profit and loss account for the relevant<\/p>\n
      previous year in accordance with the<\/p>\n
      provisions of Parts II and III of Schedule<\/p>\n
      VI to the Companies Act, 1956 (1 of 1956).<\/p>\n
                  igProvided ………….\n<\/p>\n
                    Explanation                   (1)             For         the         purposes             of         this<\/p>\n
      section,                     “book                profit”             means             the          net          profit<\/p>\n
      as              shown           in           the            profit            and       loss         account         for<\/p>\n
      the                relevant                        previous             year           prepared                   under<\/p>\n
      sub-section                     (2),                           as                     increased                     by–\n<\/p>\n<\/p>\n
                    (a) ……\n<\/p><\/blockquote>\n
                    (b) ……\n<\/p><\/blockquote>\n
                    (c) ……\n<\/p><\/blockquote>\n
                    (d) ……\n<\/p><\/blockquote>\n
                    (e) ……\n<\/p><\/blockquote>\n
                    (f) …….\n<\/p><\/blockquote>\n
                    (g)…….\n<\/p><\/blockquote>\n
                    (h) the amount of deferred tax and the<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                 -16-<\/span><\/p>\n
          provision therefor, if any amount referred<\/p>\n
          to in clauses (a) to (h) is debited to the<\/p>\n
          profit and loss account, and as reduced by–\n<\/p><\/blockquote>\n
                                      (i) ………..\n<\/p><\/blockquote>\n
                                      (ii)………..\n<\/p><\/blockquote>\n
                                      (iii) ………\n<\/p><\/blockquote>\n
                                      (iv)               the                  amount                of        profits            eligible            for<\/p>\n
                     deduction                     under                        section                           80HHC,                      computed<\/p>\n
                     under            clause                 (a)          or            clause            (b)            or            clause        (c)<\/p>\n
                     of              ig    sub-section                   (3)            or          sub-section                (3A),                 as<\/p>\n
                     the             case                may                   be,             of              that             section,            and<\/p>\n
                     subject                            to              the           conditions                 specified               in         that<\/p>\n
                     section.”                                                                   (emphasis                                    supplied).\n<\/p><\/blockquote>\n
    8.                    Section                115J                     is         contained           in                  Chapter             XII-B<\/p>\n
    which          was              inserted                 by           Finance                Act,             1987            with            effect<\/p>\n
    from          1.4.1988.                        When                  section             115J               was             introduced           by<\/p>\n
    Act               of            1957           reduction                   of        export            profits             under                the<\/p>\n
    provisions                 of           Section                80           HHC            was             not           available                to<\/p>\n
    companies                  covered                        by              Chapter          XII-B.                        However,                by<\/p>\n
    Direct                 Tax          Laws                 Amendment                  Act,             1989           it        was           brought<\/p>\n
    into effect from 1.4.1989, by introducing (iii) to<\/p>\n
    the explanation and which reads as under :\n<\/p><\/blockquote>\n
                  “the amounts as arrived at after increasing<\/p>\n
          the net profit by the amounts referred to<\/p>\n
          in clauses (a) to (f) and reducing the net<\/p>\n
                                                                                             ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                 -17-<\/span><\/p>\n
         profit by the amounts referred to in clause<\/p>\n<\/blockquote>\n
         (i) and (ii) attributable to the business,<\/p>\n
         the profits from which are eligible for<\/p>\n
         deduction under section 80 HHC or section 80<\/p>\n
         HHD; so, however, that such amounts are<\/p>\n
         computed in the manner specified in sub<\/p>\n
         section (3) or sub section (3A) of section<\/p>\n
         80 HHC or sub section (3) of section 80 HHD,<\/p>\n
         as the case may be, or ….” (emphasis<\/p>\n
         supplied) .\n<\/p><\/blockquote>\n
    .                                 The Legislature, therefore, in case of MAT<\/p>\n
    Companies choose not to initially give them the<\/p>\n
    benefit of reduction of export profits.\n<\/p><\/blockquote>\n
    9.                          Section                   115JA           was          introduced               by            the              Finance<\/p>\n
    Act,1996                    with            effect            from           1.4.1997.                           The                       language<\/p>\n
    of             section                    115JA(1)               is      also             similar                        to                language<\/p>\n
    used               in              Section           115J.              In           so         far         as           reduction               of<\/p>\n
    export                  profits        under            Section          80               HHC             they                were              not<\/p>\n
    available                   when                        the           Section              was              first                      introduced.<\/p>\n
    But by the Finance Act, 1997 it was introduced with<\/p>\n
    effect from 1.4.1998 and which reads as under:<\/p>\n
                                       “the                 amount                  of                  profits               eligible              for<\/p>\n
                    deduction                       under                 section                               80                   HHC,computed<\/p>\n
                    under                     clause              (a),      (b)           or            (c)             of          sub         section<\/p>\n
                    (3)          or           sub         section           (3A),             as          the            case            may        be,<\/p>\n
                    of                   that             section,               and                      subject                   to              the<\/p>\n
                    condition                          specified             in               sub             sections                   (4)       and<\/p>\n
                                                                                         ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                        -18-<\/span><\/p>\n
                        (4A)                     of                    that               section.”                      (emphasis                      supplied).\n<\/p><\/blockquote>\n
    10.                           Section                    115JB             was        inserted                by                 Finance                 Act,<\/p>\n
    2000                  w.e.f.                                 1.4.2001.                   It          contained              (iv)          to              the<\/p>\n
    Explanation. We have reproduced the provisions in<\/p>\n
    the earlier part of the judgment.\n<\/p>\n<\/p>\n
    11.                             In so far as MAT companies are concerned,<\/p>\n
    that                     reduction                           of           export         profit                          while                      computing<\/p>\n
    book                     profits             was              not            available             when             Section              115                 J<\/p>\n
    was                 introduced                          from                  1-4-1988.                       The                  benefit                was<\/p>\n
    given                         subsequently
\n                                           ig                             from            1-4-1989.                            Similarly                      the<\/p>\n
    reduction                         was                  not           available              in            the             case            of           section<\/p>\n
    115JA                         which          was                  introduced          w.e.f.                        1-4-1997.                             The<\/p>\n
    benefit                   was                 extended                         only           from                   1-4-1998.                           This<\/p>\n
    intent              of                the                Legislature,                 must                    be             considered                 while<\/p>\n
    interpreting                      the                        provisions.                              The                        other                 aspect<\/p>\n
    would           be               that             if              sub-section             (1B)                is          not            read           while<\/p>\n
    computing                          the             book               profits            and             which               contains                     the<\/p>\n
    sun-set                  clause                   it                would                mean                      that              even                after<\/p>\n
    1-4-2005,                        MAT                              Companies            could               claim             deduction                     of<\/p>\n
    export profits, While computing book profits which<\/p>\n
    would be an absurdity.\n<\/p>\n<\/p>\n
    12.                      It              would                      thus       be        clear           that        whether                   it          be<\/p>\n
    section                        115J,              115JA               or            115JB             the            express                         language<\/p>\n
    used           is               eligible                for            deduction                  under              Section               80           HHC<\/p>\n
    and                 computed                       under                    clause          (a)          or         clause                 (b)             or<\/p>\n
    clause                    (c)           of             sub           section          (3)           or             sub          section                  (3A)<\/p>\n
    as          the                 case               may                 be.            What           this                 means                is         that<\/p>\n
                                                                                                     ::: Downloaded on – 09\/06\/2013 14:35:26 :::<\/span>
\n                                                       -19-<\/span><\/p>\n
    sub-section               (3)             and                (3A)               provide                 for            the                method               for<\/p>\n
    computation                       of                profits.                            Once                    the                  profits                  are<\/p>\n
    worked               out,               then             only                the               profit               which                 is             eligible,<\/p>\n
    can                  be                       deducted.                                 Section                       80HHC(1)                             allows<\/p>\n
    deductions of profits to the extent referred to in<\/p>\n
    sub- section (1B).\n<\/p>\n<\/p>\n
    13.                   Another                  aspect               of            the           matter.                           Companies                 other<\/p>\n
    than          MAT                      companies                    could                claim                deductions                   of              export<\/p>\n
    profits                     calculated                        in            the              manner                     provided                            under<\/p>\n
    section                   80                    HHC            from               the          very            inception             and                     after<\/p>\n
    (1B)         to             the         igextent              provided                  by           (1B).                        MAT                 companies<\/p>\n
    who          were               in            the            business               of             export              were               not            allowed<\/p>\n
    to                claim                         reduction                while               computing                        book                         profits<\/p>\n
    under          section                 115J             or              115JD             for            some                of           the             periods<\/p>\n
    as            earlier                     set                 out.                  Accepting                 the                 argument                     on<\/p>\n
    behalf         of              the            MAT              companies                     would            be             that              they         must<\/p>\n
    be                   treated                         more                 advantageously                  than               other                         export<\/p>\n
    companies,                             though                the            other               export                companies                              were<\/p>\n
    continuously                           enjoying                         100%                       deduction                        of                     export<\/p>\n
    profits until introduction of sub section 1B of<\/p>\n
    section 80 HHC.\n<\/p>\n<\/p>\n
    14.                                     For              interpreting                    the             statutory                  provisions                 let<\/p>\n
    us           refer                to             some                    decided                case                law.                       In            K.P.<\/p>\n
    Varghese                        Vs.                      Income                 Tax             Officer               and            another,               1981<\/p>\n
    (131)         ITR               597             (SC),              it        was               observed               that           it             is       well<\/p>\n
    recognized                                rule                of                construction                    that                the                  statutory<\/p>\n
    provisions                        must                       be            so            construed              if            possible                        that<\/p>\n
    absurdity                   and                  mischief                    may              be        avoided.                               If             the<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                     -20-<\/span><\/p>\n
    situation                           arises                   where                    the                   construction                                           suggested<\/p>\n
    on            behalf                 of                 the               Revenue               would                    lead                      to                   wholly<\/p>\n
    unreasonable                        and                               unjust              result                 which                 could                              never<\/p>\n
    have          been                intended                   by                the               Legislature,                          then                  it            must<\/p>\n
    be                   avoided.                           An                   interpretation                      must                  be            arrived                  at,<\/p>\n
    which                   avoids               absurdity                       and            mischief                   and                  makes                            the<\/p>\n
    provisions                         rational                   and                   sensible                 unless                     of                               course<\/p>\n
    the         courts           hands                are                 tied           and              it           is              not               possible                 to<\/p>\n
    find           escape                    from                         the                       tyranny                      of                    the                    literal<\/p>\n
    interpretation.                              It              is              now            a          well               settled                  rule                       of<\/p>\n
    construction                        that                              where                            the                             plain                             literal<\/p>\n
    interpretation                      ig     of                     a                statutory                     provision                        produces                     a<\/p>\n
    manifestly                       absurd                           and              unjust             result                            which                             could<\/p>\n
    never                  have                       been                    intended               by              the              Legislature,                               the<\/p>\n
    court                 may                 modify                       the                      language                     used                   by                       the<\/p>\n
    Legislature            or            even               “do                   some               violence”                    to              it,                 so          as<\/p>\n
    to           achieve                the                 obvious                       intention                     of                      the                   Legislature<\/p>\n
    and          produce                a             rational                     construction.                                  The                   court                  may<\/p>\n
    also           in                 such              a                       case                read                   into                   the                      statutory<\/p>\n
    provision                           a              condition                         which,                      though                     not                   expressed,<\/p>\n
    is                   implicit                           as                  constituting                   the            basic                                   assumption<\/p>\n
    underlying                   the                   statutory                                     provision.                                        For                      that<\/p>\n
    purpose                     the           courts                  may               use            aids             for                fixing                 out            the<\/p>\n
    mischief                    the            enactment                        seeks           to              avoid                 as              also                       the<\/p>\n
    object                      of               the                               legislation.                                  In                              Gurudevdatta<\/p>\n
    V.K.S.S.S.                          Maryadit                          &             Ors.                               vs.                        State                       of<\/p>\n
    Maharashtra & Ors. AIR 2001 S.C., the same view<\/p>\n
    was explained as under:-\n<\/p>\n<\/p>\n
                                         ”             Further                      we         wish            to       clarify             that            it        is           a<\/p>\n
                                                                                                      ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                              -21-<\/span><\/p>\n
                  cardinal                        principle                                of                                         interpretation                            of<\/p>\n
                  statute                    that                 the               words                   of              a              statute                must          be<\/p>\n
                  understood                            in                          their               natural,                              ordinary                          or<\/p>\n
                  popular                        sense                             and               construed                                according                         to<\/p>\n
                  their                           grammatical                                                         meaning,unless                                         such<\/p>\n
                  construction                          leads                         to                         some                            absurdity                      or<\/p>\n
                  unless                         there                   is           something                         in                 the               context            or<\/p>\n
                  in              the               object                    of           the              statute                   to           suggest                      to<\/p>\n
                  the                  contrary.                                   The               golden                     rules              is             that         the<\/p>\n
                  words           of               a              statute                  must                  prima                     facie                 be         given<\/p>\n
                  their                 ordinary                         meaning.                                It              is              yet                       another<\/p>\n
                  rule            ig        of               construction                        that                 when                  the               words             of<\/p>\n
                  the            statute                      are                   clear,                       plain                     and                    unambiguous<\/p>\n
                  then                  the                  Courts                 are               bound                     to           give                 effect        to<\/p>\n
                  that                            meaning,                                           irrespective                                       of                     the<\/p>\n
                  consequences.                                     It                     is           said                that                       the                  words<\/p>\n
                  themselves                     best                     declare                      the                      intention                         of           the<\/p>\n
                  law               giver.                           The                 courts              have                    adhered                 to                the<\/p>\n
                  principle                       that                         efforts                should                 be                         made                    to<\/p>\n
                  give                 meaning                      to             each               and               every                 word                 used         by<\/p>\n
                  the            Legislature                             and                    it                is                   not                   a              sound<\/p>\n
                  principle                        of                          construction                       to                          brush                          aside<\/p>\n
                  words                in                    a                     statute                              as                    being                      inaposite<\/p>\n
                  surpluses,                 if                   they                    can                               have                   a                       proper<\/p>\n
                  application                                in                                             circumstances                                             conceivable<\/p>\n
                  within                the                          contemplation                                     of                     the                       statue….”\n<\/p><\/blockquote>\n
    15.                Whether                    speeches                          made               on              the            floor                      of            the<\/p>\n
    House                 were                          admissible                                     in                             interpreting                             the<\/p>\n
    provisions.                   Speeches                                    made              by           the                 Members                     of                the<\/p>\n
                                                                                                      ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                        -22-<\/span><\/p>\n
    Legislature                     on           the           floor             of             the           House               when               a                 Bill<\/p>\n
    for           enacting                   a                statutory                    provision                      is                 being                debated<\/p>\n
    are                     inadmissible                             for                 the            purpose                   of                           interpreting<\/p>\n
    the                     statutory              provision                but                 the              speech                 made               by          the<\/p>\n
    mover                   of                   the          Bill          explaining                  the          reason                         for                the<\/p>\n
    introduction                           of             the                   Bill              can                certainly                     be             referred<\/p>\n
    to                for                    the          purpose                  of            ascertaining                            the                      mischief<\/p>\n
    sought                    to                   be           remedied                  by            the          legislation                   and                 the<\/p>\n
    object                    and                       purpose                 for             which               the               legislation                     was<\/p>\n
    enacted.                        The                  Supreme                          Court             in                  K.P.                            Varghyese<\/p>\n
    (supra)           said               that            this              is              in               accord                with               the            recent<\/p>\n
    trend                in                juristic
\n                                          ig                           thought                 not                  only                      in                  Western<\/p>\n
    countries                          but               also               in                  India               that                 interpretation                 of<\/p>\n
    a          statute              being                an                exercise                    in            the                 ascertainment                  of<\/p>\n
    meaning,                        everything                             which                  is                           logically                          relevant<\/p>\n
    should                  be                   admissible.                                           The                       Finance                        Minister’s<\/p>\n
    speech,                        therefore,             can               be                 relied               upon                by               the         court<\/p>\n
    for the purpose of ascertaining what was the reason<\/p>\n
    for introducing that clause.\n<\/p>\n
    .                                 Reference also may be made to the judgment<\/p>\n
    in         P.V.                       Narsimha                   Rao               (supra)                for               the            same               purpose.<\/p>\n
    The               court                  addressing                         itself                  to                 the                  canons                  of<\/p>\n
    construction                         noted                         that                the               view               which                            prevailed<\/p>\n
    earlier,             with                Courts                   in                 England,                    was                     that                reference<\/p>\n
    to                 Parliamentary                             material                  as               an            aid            to                       statutory<\/p>\n
    constructions                          is                  not                             permissible.                               The                         said<\/p>\n
    exclusionary                                rule             precluded                        the                court                    from                 looking<\/p>\n
    even               at                 reports                     made               by           Commissioners                             on                  which<\/p>\n
    legislation                     was                       based.                       The               rigidity             of           the                    said<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                      -23-<\/span><\/p>\n
    rule         was              relaxed                 in             later           decisions                    so             as               to           permit<\/p>\n
    reports                        of                              Commissioners,                                           including                                Law<\/p>\n
    Commissioners                             and              white              papers              to              be             looked                 at         for<\/p>\n
    the          purpose                  solely                    of              ascertaining                        the                    mischief                the<\/p>\n
    statute         is            intended                  to             cure            but                  not            for               the              purpose<\/p>\n
    of            discovering                         the           meaning               of          the             words                      used                  by<\/p>\n
    Parliament                    to                      effect                    such                         cure.                                 Parliamentary<\/p>\n
    debates                 were,              however,                  not        looked                 at           as           an           aid                   to<\/p>\n
    construction.                               The                         statement                of               the           Minister                         who<\/p>\n
    moved                  a           bill          in           the            Parliament                could               be              looked                   at<\/p>\n
    to                   ascertain              the              mischief                sought                  to            be               remedied               by<\/p>\n
    the legislation and the object and purpose for<\/p>\n
    which the legislation is enacted.\n<\/p>\n
    16.                    Can                  the              statement           of             object            and                      reasons                 be<\/p>\n
    looked                 int.                            In            Gurudevdatta                 VKSSS                           Maryadit                        and<\/p>\n
    others Vs. State of Maharashtra and Others, AIR<\/p>\n
    2001 S.C. 1980 the Supreme Court observed :<\/p>\n
                                         “The                       Statements                 of           objects               and            reasons             need<\/p>\n
                     to                looked                    into              though                       not               by                   itself           a<\/p>\n
                     necessary                        aid                   as                  an           aid                     to                    construction<\/p>\n
                     only,                          if             necessary.                             To                assessee               the              intent<\/p>\n
                     of                  the                     Legislature              in          the             event                      of                  there<\/p>\n
                     being                           any                         confusion,                 statement                     of                       objects<\/p>\n
                     and                reasons                    may               be                looked                     into                 and             no<\/p>\n
                     exception                  can                 be             taken                   therefor-                 this                  is         not<\/p>\n
                     an                              indispensable                       requirement                        but                 when                faced<\/p>\n
                     with                       an                       imperative                 need               to           appreciate                         the<\/p>\n
                     proper                                    intent               of                the                    Legislature,                        statement<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                               -24-<\/span><\/p>\n
                  may                 be                looked                       into                    but                      not                  otherwise….”\n<\/p><\/blockquote>\n
    . The Court then observed :\n<\/p>\n<\/p>\n
                                     “While                 the              statements                     of          objects                 and              reasons<\/p>\n
                  in                the                normal                        course             of            event                    cannot                 be<\/p>\n
                  termed                    to                    be          the              main              or         principal                aid               to<\/p>\n
                  construction                   but               in                the                event                    it             is              required<\/p>\n
                  to                      discern                      the                           reasonableness                           of                     the<\/p>\n
                  classification.                                                                                                                                    ….”\n<\/p><\/blockquote>\n
    . Proceeding further the Court observed that :\n<\/p>\n
                                     “For              the              limited                 purpose                 of                  appreciating             the<\/p>\n
                  background                           and                     the                                antecedents                                    factual<\/p>\n
                  matrix                     leading                           to              the           legislation,                             it               is<\/p>\n
                  permissible                          to                      look                  into             the              Statement                       of<\/p>\n
                  objects                  and                Reasons                          of                       the                    Bill               which<\/p>\n
                  actuated                       the                    step              to           provide               a              remedy                   for<\/p>\n
                  the                                    then                                               existing                                           malady.”\n<\/p><\/blockquote>\n
    17.                        Gurudevdatta                   V.K.S.S.                                  Maryadit                      (supra)                       also<\/p>\n
    dealt                with              the               explanatory                        memorandum                             to             the           Bill.<\/p>\n
    Reliance                  was           placed                 on               the               Australian                      Judgment                         in<\/p>\n
    CIC                 Insurance                 Limited                    Vs.                            Bankstown                        Football              Club<\/p>\n
    Ltd.                 1997              (187)             CLR              384.                      The             Supreme                    Court           noted<\/p>\n
    that                the               High               Court                   of               Australia                       permits                 Reference<\/p>\n
    to      the         Memorandum                      of              Bill               in               order             to               ascertain             the<\/p>\n
    mischief which the Statute was intending to<\/p>\n
    remedy. The court recorded its<\/p>\n
                                                                                                 ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                         -25-<\/span><\/p>\n
    unhesitent<\/p>\n
    concurrence to the proposition.\n<\/p>\n<\/p>\n
    18.                         Before                             we           apply               the            principles              of                     statutory<\/p>\n
    interpretation                 let                  us               refer                     to                 the             documents                        placed<\/p>\n
    before        us.                             The              budget                speech                  of            Prime              Minister               and<\/p>\n
    minister              of                      Finance                       for           87\/88             (165)           ITR                   13                 was<\/p>\n
    referred             to                   point                     out                         that                    Section               115J                   was<\/p>\n
    introduced           so               that               MAT                companies                       will           pay              tax              of        at<\/p>\n
    least                30%                  of             its          book                profits.                         Reference                   was           then<\/p>\n
    made         to            C.B.D.T.                                 Circular               No.                            435           dated                22.9.1987<\/p>\n
    to           point                    ig   out           the          manner                   in           which           the         book                       profit<\/p>\n
    has          to                 be                  worked                out.                  Circular            No.                       559                   dated<\/p>\n
    4.5.1990                       with                  reference                       to                           Direct               Tax                          Laws<\/p>\n
    (Amendment)                               Bill            1988,                 notes                that               Section             115J                       of<\/p>\n
    the          Income                           Tax                   Act           levies             minimum               tax                on                   “book<\/p>\n
    profits”                  of              a          company.                              Section                  115J             took              away           the<\/p>\n
    100%                 exemption                      which                 was             to           be               allowed          in                       respect<\/p>\n
    of         export               profits                   earned                  by                 the                exports               and                 tourism<\/p>\n
    related                    industry                       and                   thus                          watered                   down                          the<\/p>\n
    encouragement                        which                      was                       to           be          provided                       to                such<\/p>\n
    foreign                        exchange                             earning                                 activities.                            It                was<\/p>\n
    decided                    that                          the              profits,              which               are           exempt                           under<\/p>\n
    sections                  80              HHC              and             80             HHD                should             be          excluded                from<\/p>\n
    the        purview                   of             section                115J                 w.e.f.                          August                 1,          1989.<\/p>\n
    Reference                 then                      is                    made            to          the           Budget                    speech                   of<\/p>\n
    Finance                               Minister                        1996-97                        introducing                      Section                      115JA<\/p>\n
    which              speaks                        about                     introduction                 of                 MAT                      In                the<\/p>\n
    Budget               speech                         of                    1997-98               it          was           noted                   that                the<\/p>\n
    export            profits                  which                    were               not                  eligible              for                  tax           will<\/p>\n
                                                                                                         ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                              -26-<\/span><\/p>\n
    be            exempt              from          the         MAT            and        will         be                eligible           for<\/p>\n
    full        deduction         under             Section              80          HHC.                      That            was        when<\/p>\n
    section                  115JA            was               introduced                and            the             benefit         under<\/p>\n
    Section                 80HHC            was              not         available             to          MAT                      companies.<\/p>\n
    This               was           done               as          a          large            number              of         representations<\/p>\n
    had                been           received.                          The             Memorandum,                     explaining         the<\/p>\n
    provisions               of               the             Finance           Bill          1997            was          that             the<\/p>\n
    bill             proposed                      to          exempt             the           export          profits                  under<\/p>\n
    Section             80            HHC                    from                the             purview                 of           Minimum<\/p>\n
    Alternate                Tax.                             CBDT                       Circular              No.763                     dated<\/p>\n
    18.2.1998,                sets           out              MAT              was            introduced              w.e.f.                1st<\/p>\n
    April,             1997        igand            the             Finance            Act,          1997           exempts                 the<\/p>\n
    export              profits                     which               are          eligible                  under                    section<\/p>\n
    80HHC or under section 80 HHG from the purview of<\/p>\n
    minimum alternate tax.\n<\/p>\n<\/p>\n
    19.               Then             we                    have        the      budget             speech               of            Finance<\/p>\n
    Minister                         dated                   29.2.2000                  while               introducing                 section<\/p>\n
    115JB. Referring to Clause 49 in the notes of<\/p>\n
    clauses it was provided as under :\n<\/p>\n<\/p>\n
                                    “The book profit shall mean the net profit<\/p>\n
                    as shown in the profit and loss account<\/p>\n
                    prepared in accordance with the provisions<\/p>\n
                    of Parts II and III of Schedule VI to the<\/p>\n
                    Companies Act, 1956, as reduced by certain<\/p>\n
                    adjustments, as specified.               The profits<\/p>\n
                    received in convertible foreign exchange and<\/p>\n
                    eligible for deduction under Section 80 HHC<\/p>\n
                    or section 80 HHE or section 80 HHF or the<\/p>\n
                                                                                       ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                 -27-<\/span><\/p>\n
                     Income referred to in section 10 or section<\/p>\n
                     10A or section 10B shall be excluded while<\/p>\n
                     working out “book profits”.                  (emphasis<\/p>\n
                     supplied).\n<\/p><\/blockquote>\n
    . In the Memorandum explaining the provisions in<\/p>\n
    the Finance Bill it was provided as under :<\/p>\n
                                      ”                However,              export          profits         under             section                  80<\/span><\/p>\n
                     HHC,                 80      HHE            and         80       HHF         are         kept         out            of           the<\/p>\n
                     purview                        of            this              provision               during                  the             period<\/p>\n
                     of             phasing
\n                                     ig                   out                of             deductions                   available                   under<\/p>\n
                     those                                                                                                                provisions….”<\/p>\n
    20.                       The          meaning               of           some           expressions,                must              also         be<\/p>\n
    considered.                            The                        Oxford                                Dictionary                             defines<\/p>\n
    “eligible”                 to                mean             fit          or           entitled          to          be                       chosen.<\/p>\n
    In           Stroud’s            Judicial            Dictionary,                  7th          Edn.                              Page              824<\/p>\n
    “eligible”                  means                     “legally                qualified            or          fit              to                  be<\/p>\n
    chosen”.                          In               Justice                       L.P.                     Singh’s                              Judicial<\/p>\n
    Dictionary, 3rd Edn. the word “eligible” means<\/p>\n
    “fit or entitled to be chosen”.\n<\/p>\n<\/p>\n
    21.                      Similarly                    word                        “Condition”                         in                       Oxford<\/p>\n
    Dictionary means “stipulation; thing on fulfilment<\/p>\n
    of which something else depends”.\n<\/p>\n<\/p>\n
    22.                       The               principles                   elucidated                earlier                 of                 statutory<\/p>\n
    construction               can               now                    be             considered                    for                       interpreting<\/p>\n
    the                     provisions            of             Section               115JB                vis-a-vis                              Section<\/p>\n
                                                                                        ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                          -28-<\/span><\/p>\n
    80HHC.                            Does                         a          literal            reading               of           section          80                HHC<\/p>\n
    read                   with                             section                  115JB(2)                                 Explanation                            (1)(iv),<\/p>\n
    lead       to               an               absurdity                   and\/or               does                  not              make              clear         the<\/p>\n
    Parliamentary                          intent                           considering                           the             law                      as              it<\/p>\n
    stood             before                          section                         115JB                 was                      introduced.                          In<\/p>\n
    Sections                    115J                        and                   115JA               the              expression                used                  were<\/p>\n
    profits                  eligible                              for              deduction                   under                          section                    80<\/p>\n
    HHC.                        Section                     115JB                         also                          uses                   the               expression<\/p>\n
    “profits              eligible                    for                    deduction”.                                       There                 really              can<\/p>\n
    be                     no                  difficulty                    in             understanding                           what             this            means.<\/p>\n
    Only                        those                 profits                     which                are               eligible                and               computed<\/p>\n
    in                terms                ig   of             sub-section                      (3)               or              (3a)           and              quantified<\/p>\n
    in             terms                        of                      sub-section               (1B).                                  The                    computation<\/p>\n
    whether                     under                 sub-section                     (3)             or               (3a)           are            for                 the<\/p>\n
    purpose                of                    sub-section                         (1)                           or                    (1A).                      Section<\/p>\n
    80HHC(1)                    permits                        a                    deduction                to                   the                extent               or<\/p>\n
    profits                     referred                  to                 in             sub-section                     (1B).                          The          only<\/p>\n
    question                         is              whether                  the                expression                    in           clause                       (a),<\/p>\n
    (b)         or                    (c)                 to                          sub-section                           (3)                consequent                 on<\/p>\n
    introduction                          of          section                 1B             to             Section                 80           HHC                    will<\/p>\n
    have a meaning different from the meaning then what<\/p>\n
    was originally understood, Considering (iv)<\/p>\n
    to Explanation-I of Section 115JB.\n<\/p>\n<\/p>\n
    23.                               Until               section                   115JB                  was                introduced,               the           whole<\/p>\n
    of              the                        profits             computed                 under               Section               80           HHC                  was<\/p>\n
    eligible                for                      reduction                            for                     computing                          the               book<\/p>\n
    profits.                               Pursuant                    to           section                1B            of              section            80         HHC<\/p>\n
    The                    deduction                     available                   to               the              extent               provided                      in<\/p>\n
    Section                     (1B)                        and                   after           1-4-2005                    the           deduction                     of<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                      -29-<\/span><\/p>\n
    export              profits                           is                   discontinued.                                    The                          assessees<\/p>\n
    argument              is                    that                   only         in           case          of                companies                        not<\/p>\n
    covered             by                  section                      115JB             to        then              Section                    1B               of<\/p>\n
    section        80                HHC                       would          apply.               In         so               far            as                MAT<\/p>\n
    companies                         are                  concerned,                  the              profits                eligible                            for<\/p>\n
    deduction                        are               as              computed                   under                 sub-section                    (3)         or<\/p>\n
    (3A)                     of                 Section                  80HHC                    without                  applying                     sub-section<\/p>\n
    (10).                    This                      argument                is          based             on                  the                    expression<\/p>\n
    “computed under sub-section (3) or sub-section (3A)<\/p>\n
    as the case may be.\n<\/p>\n<\/p>\n
    24. For that purpose, we will have to examine the<\/p>\n
    true scope and effect of section 80HHC.\n<\/p>\n
    .             Section                  80               HHC,              the               relevant                provisions                to            which<\/p>\n
    we            have                          earlier                       reproduced                is                     sub-section                        (1),<\/p>\n
    which                      provides,                    that             in            computing                     the             total                income<\/p>\n
    of          the            assessee,               a             deduction            is        to             be          made           to                   the<\/p>\n
    extent               of             profits                 referred             to            in              sub           section                         (1B)<\/p>\n
    derived             by                      the             assessee            from           the             export                    of                  such<\/p>\n
    goods.                        The             section               as          amended                has            brought             in                   the<\/p>\n
    words         “deduction                         to                the                extent                  of             profits”                     referred<\/p>\n
    to           in                   sub-section                     (1B)          by            Finance                       Act,2000                         with<\/p>\n
    effect                from                  1.4.2001.                            If            the              construction                               sought<\/p>\n
    to            be              given                by             Counsel              for           assessee                is           accepted              it<\/p>\n
    would               make                          sub-             section            (1B)             irrelevant                        for                   the<\/p>\n
    purpose                     of              Section                 115JB.                               Sub-Section                 1B                  provides<\/p>\n
    for         deduction                       in                   terms                set                out                therein.                          Sub<\/p>\n
    section               (3)              sets                out           the          method               of           computation                            of<\/p>\n
    profits.                         The                    computation                      of               profits                  is,               therefore,<\/p>\n
                                                                                                  ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                       -30-<\/span><\/p>\n
    for               the                 purpose               of           working                out           the                     deduction                      of<\/p>\n
    profits              available                      under                      Section                              80                     HHC                    (1B).<\/p>\n
    Earlier                 it                  was            in          terms              of          sub-section                   (1).                          Now<\/p>\n
    Section                      80         HHC                (1)            in             term               refers             to                section          (1B).<\/p>\n
    All                      the             provisions                     are               inter-related                       and                 cannot             be<\/p>\n
    read         de         hors          one            and           other.                       If           (1B)             is           not            read       in<\/p>\n
    (1)               then                  the                      expression                “no              deduction                            shall               be<\/p>\n
    allowed                       in            respect               of               the           assessment                        beginning                         on<\/p>\n
    the first day of April, 2005 and any subsequent<\/p>\n
    year, shall be rendered otiose.\n<\/p>\n<\/p>\n
    25.                      In          ig      so                  far          as          section                       115JB(2)                         Explanation<\/p>\n
    1(iv)                    is           Concerned,                   in               computing                     the               book                         profits<\/p>\n
    the                export                     profits             under              Section                 80HHC                  had            to                be<\/p>\n
    reduced.                      The             object              of               Section                  115JB                  was             to            impose<\/p>\n
    tax           on                  companies                     which                    are         known                     as                  zero             tax<\/p>\n
    companies.                            These                       companies                            though                         making                      huge<\/p>\n
    profits                  and                        paying              handsome                     dividends,                            were                     not<\/p>\n
    paying                  any                  tax.                 The              object            of           the                    Section                   was,<\/p>\n
    therefore,                   that                 they           pay           tax             not           in         a                   manner                   of<\/p>\n
    total                income                          computed                  by              other              companies,                     but                 on<\/p>\n
    the               book                 profits                     which                 had          to          be                     calculated                  in<\/p>\n
    terms                   of           sub-section                  115              JB            (2).                         The                assessees           do<\/p>\n
    not           dispute                this.                             Their               argument                      is                that             reduction<\/p>\n
    must               be                 the                  whole              of          the          book                        profits                 computed<\/p>\n
    under                   sub-section                        (3)           or          (3A)               of                     Section                       80HHC.<\/p>\n
    The                  object                  of                 Section                         80HHC                               as                      originally<\/p>\n
    introduced                     was                    to          exempt                  the             whole               of           the                   export<\/p>\n
    profits.                                     By             virtue                  of               Sub-section                      (1B)                 introduced<\/p>\n
    w.e.f.                        1.4.2001                the                deduction                     is               only                 a             percentage<\/p>\n
                                                                                                     ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                              -31-<\/span><\/p>\n
    of                the                        export             profits             as             allowed                therein                       and               no<\/p>\n
    reduction                              after                          1-4-2005.                                       This                    benefit                     of<\/p>\n
    reduction                              was               initially            not               made                 available                  to                     MAT<\/p>\n
    Companies, but the benefit was extended from<\/p>\n
    1-4-1989.\n<\/p>\n<\/p>\n
    26.                          It                is          then            sought             to          be          contended                          that             the<\/p>\n
    expression                               conditions                   in            (iv)              of                 Explanation                    1                 of<\/p>\n
    Section                           115JB                         cannot               be              referable                  to            sub                     section<\/p>\n
    (1B)               of                        Section              80HHC                  as          (1B)                is          not        a                 condition<\/p>\n
    but         in                the              nature                of         computation.                                         We             have             referred<\/p>\n
    to          the                     dictionary
\n                                              ig                      meaning                       of                  the                word                   “Conditions”.<\/p>\n
    Even         if               we             accept               that          (1B)                 of             Section                 80HHC               is       not<\/p>\n
    a                 condition                                and                proceed                               on                       that                    footing,<\/p>\n
    nevertheless                              it                          is            impossible                      of               reading                          section<\/p>\n
    80HHC                        (3)                    or        (3A)            independent                  of             section                       80             HHC<\/p>\n
    (1B).                             To                 our          mind,         the                language               is                 clear.                      The<\/p>\n
    literal             meaning                               does                 not              in         any                way                   defeat                the<\/p>\n
    object                            of            the              section                 and\/or                 lead                  to            an           absurdity.<\/p>\n
    The                object                        of           Section           115JB                 is            to           allow          even                   MAT<\/p>\n
    companies                    to           avail                 of            the               benefit                   of               deduction.                      If<\/p>\n
    we                consider                           the                    assessee’s                         arguments                            that               MAT<\/p>\n
    companies                                 are                entitled                to               full                    deduction                  of           export<\/p>\n
    profits                 it                   will                    lead                  to                   anomaly,                       whereby                    the<\/p>\n
    companies                          which                      are                   paying                tax             on                  total                  income<\/p>\n
    under                        the             normal                  rules,          for              them                    the           deduction                     of<\/p>\n
    export              profits                         will                be                          lessor                     than                 what               MAT<\/p>\n
    companies                          are                     entitled                   to.                      Is             this                  a                possible<\/p>\n
    view.                               When                    section                  115J                  was                       originally                 introduced,<\/p>\n
    MAT                     companies                               were           not              entitled                 to                   deduction                   of<\/p>\n
                                                                                                           ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                        -32-<\/span><\/p>\n
    profits                       under           section               80               HHC                    while                working                out          the<\/p>\n
    book         profits.                             That            came                   to            be              introduced                  by             Direct<\/p>\n
    Tax                Laws            Amendment                      Act,             1989              w.e.f.                      1.4.1989.                            A<\/p>\n
    year                          Later.                            Parliament,                         therefore,                   initially                          had<\/p>\n
    even               denied                    to                MAT                                  companies                      deduction                      under<\/p>\n
    section                   115J.                                 When                 Section                115JA                 was                         introduced<\/p>\n
    w.e.f.                                 1-4-1997,                   Section                     80HHC                    benefits                  were             once<\/p>\n
    again              not                available                   for                          MAT                     Companies.                                   The<\/p>\n
    amendment                        by           Finance               Act                  1997              to           give             the                     benefit<\/p>\n
    was                w.e.f.                    1.4.98.                     Can             it          now               be         argued               that       MAT<\/p>\n
    companies                                         considering                            section                        115JB(2)                            Explanation<\/p>\n
    1           (iv)                are    ig           entitled                   to         be           placed                    in                a              better<\/p>\n
    position                        than              the             other                  companies                     entitled              to                      the<\/p>\n
    export              deduction                       under                      section                              80                   HHC                     though<\/p>\n
    earlier                  they                     constituted                 one             class.                        No                  rule                  of<\/p>\n
    construction                           nor               the             language                      of               the             section                 80HHC<\/p>\n
    read         with                Section                  115JB,                    in               our               opinion                 will              permit<\/p>\n
    such                 construction.                                       If          such               construction                              is                 not<\/p>\n
    possible            then               both                the                classes                  of               companies                      will          be<\/p>\n
    entitled             to                the                 same                               deduction.                              This                        would<\/p>\n
    contemplate                           that                both                  would                              be                   entitled                      to<\/p>\n
    deductions                       of                 profits                   in                       terms                            of                       section<\/p>\n
    80HHC(1B).                             So                 read,                 it            would                    be               a                   harmoneous<\/p>\n
    construction.                            A                     class                      of           companies                            covered                  by<\/p>\n
    Section                   80HHC                          cannot                          be          sub-classfied                             into                 two<\/p>\n
    classes,                       when                            more                so,               for               intermittent                             preriods<\/p>\n
    Parliament                        had               even               denied                  the               benefit              of                        Section<\/p>\n
    80HHC                to                 MAT               Companies.                           If          the         argument                        of            the<\/p>\n
    assessee                 is             to                 be                  accepted,               what                      then                  is            the<\/p>\n
    mischief,            that               Section                  115JB                   sought                   to              avoid.                          What<\/p>\n
                                                                                                        ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                          -33-<\/span><\/p>\n
    Section                    115JB                             did              was              to             continue                    the                         deductions<\/p>\n
    also         to        the                  MAT                  Companies.                                  The                  only               difference               was<\/p>\n
    that                 instead                   of           calculating                   tax                at              30%                of              the         book<\/p>\n
    Profits                as                 in          the              case             of             Section                    115J,              115JA,                     it<\/p>\n
    was               made               7.5%                 and          from             1st             April,               2007              it         is                10%.<\/p>\n
    The               language                           used                     in          (iii)              to         explanation                             1               to<\/p>\n
    sub-section                 (2)                      of                Section                                115J                    or                   (vii)                to<\/p>\n
    Explanation                     1                   of                 Section                      115JA(2)                             or                    (iv)            of<\/p>\n
    Explanation 1 of Section 115JB (2) is eligible for<\/p>\n
    deduction.\n<\/p>\n<\/p>\n
    27.                    The             ig           argument                        of            the             assessee                          is                   basically<\/p>\n
    based                on                        the              memorandum                     of             understanding                                in                 the<\/p>\n
    Finance              Bill                   2000                  which                      we                   have                   earlier                     reproduced.\n<\/p>\n
    It                only                says                that           export                   profits                under                  section                        80<\/p>\n
    HHC                  and             others               are          kept             out             of             the          purview                of                 the<\/p>\n
    provision                  during                          the                 period               of                       phasing                           out             of<\/p>\n
    deductions                                available                   under                  the                  provisions.                                       At        the<\/p>\n
    same                 time,                          in           the           notes               of             clauses                it          is                    clearly<\/p>\n
    stated                that                 the             profits             will               be              as              reduced                 by                  the<\/p>\n
    certain                         adjustments                                   which                                are                        eligible                         for<\/p>\n
    deduction                under                        Section                      80                             HHC.                               The                   profits<\/p>\n
    eligible                            for               deduction                     are                 export                     profits                     in           terms<\/p>\n
    of            section                          80          HHC            (1B).                         There                is      nothing                   in             the<\/p>\n
    Finance                             Minister’s                   speech                  of                  29.2.2000,                       (242)                          ITR<\/p>\n
    2000                  to              hold                 otherwise.                             We               have                  earlier                         referred<\/p>\n
    to           rules                   of                  construction                     as                           set                    out               in            the<\/p>\n
    judgments             earlier                       quoted.                              The                  Notes                  of                  objects              and<\/p>\n
    reasons                    is             only             an            aid             to             construction.                                That                     aid<\/p>\n
    to                construction                                   is           only                when                  the               literal                         reading<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                           -34-<\/span><\/p>\n
    leads              to                         ambiguous                 result             or         absurdity.                                To                  our<\/p>\n
    mind                        considering                     the              literal                language                there              is                    no<\/p>\n
    absurdity            or                       ambiguity                     being                   caused                 or             any                  mischief<\/p>\n
    sought          to                       be                 remedied.                               The               language                      used              in<\/p>\n
    section                               115JB                      is            deduction                       available                  under                 section<\/p>\n
    80           HHC.                             It                 is            difficult                  to            conceive                     of             any<\/p>\n
    rational                     reason                              as           to            why                the          legislature                          should<\/p>\n
    have            thought                              to                 give                     MAT                       companies                          additional<\/p>\n
    benefits                     than                          the              other           companies                  who            are                        paying<\/p>\n
    tax           on                 total             income              and           not            the         tax          based             on                  book<\/p>\n
    profit               as                            calculated                under              section               115JB.                        Is                it<\/p>\n
    possible                    to          ig         conceive                         of          any            degree                     of                    fairness<\/p>\n
    and\/or               justice                              that         MAT                 companies,                who                    for                   some<\/p>\n
    periods                      were                    denied              the               benefit              of              section             80            HHC,<\/p>\n
    because                     of                       the                      introduction                of                      section                      115(JB)<\/p>\n
    Explanation                       1                   (iv)                    are           entitled                   to                  have                    their<\/p>\n
    entire             export                            profits                   reduced.                                The                     object                of<\/p>\n
    section        15JB                      or            for              that              matter                section             115J                 or         115<\/p>\n
    JA           was                      to                  impose             tax          on               those                   companies                     which<\/p>\n
    otherwise                              considering                            various                                       exemptions                               or<\/p>\n
    deductions                             available                      under               the             Act,              though                              making<\/p>\n
    huge                 profits                               and              paying              large               dividends             were                      not<\/p>\n
    paying                  any                   tax.                     It           is          therefore,              not           possible                        to<\/p>\n
    accept         the                    construction                     as                sought                to           be              advanced                 on<\/p>\n
    behalf         of                     the              assessee,                    that              they              should                  be               treated<\/p>\n
    on                      a                  different                  footing                  in              computing                  export                 profits<\/p>\n
    under Section 80HHC, for the purpose of Section<\/p>\n
    115JB.\n<\/p>\n<\/p>\n
    28.                 We                        have                    had          the         benefit                of              going                     through<\/p>\n
                                                                                                         ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                                          -35-<\/span><\/p>\n
    reasoning                and                   the               orders                  in               ITAT                     Vs.                    SIMCOM<\/p>\n
    (supra)             as                 also                 in                 the          case                  of                D.C.I.T.                        Vs.<\/p>\n
    Govind                   Rubber.                                  It          is         not             possible              to          agree                   with<\/p>\n
    the view taken by the Benches. Those decisions in<\/p>\n
    view of this judgment stand overruled.<\/p>\n
    29.                  Our               attention                  was                also             invited                 to            the               Judgment<\/p>\n
    of             the               Kerala                 High                  Court                       in             the                      case               of<\/p>\n
    Commissioner                          of             Income             Tax              Vs.                      GTN               (2001)              248        ITR<\/p>\n
    372.                             In              the           first               instance,                the           Kerala                  High            Court<\/p>\n
    was                  considering                              the             provisions                  of                        Section                       115J.<\/p>\n
    Section                  115JB        ig               was              not           under                        consideration.                                   The<\/p>\n
    High                     Court                  noted               that              original                 section               115J                of         the<\/p>\n
    Act          did               not              contain                 exemption                    under                Section                  80            HHC.\n<\/p>\n
    That                  section                   as          we             have                noted,              did              not                       originally<\/p>\n
    include                          exemption                             allowed                      to                   exporters                                under<\/p>\n
    Section                  80HHC.                                     By             the             virtue          of              the                   Explanation<\/p>\n
    and                  clause                3           thereto,               which                came                into              effect                    from<\/p>\n
    1.4.1989,             the                  reduction                    under                  section                   80                HHC                  became<\/p>\n
    available.                                     The            issue                before                the             Kerala               High                Court<\/p>\n
    was,               what                    is                 profit           that            should                    be                  taken                  into<\/p>\n
    consideration                              considering                                 the                             accounting                               system<\/p>\n
    that         have              to              be           followed                  while                 working                 out             the           book<\/p>\n
    profits.                             Therefore,                         the           judgment                    would              be            of                no<\/p>\n
    assistance in considering the question framed for<\/p>\n
    consideration.\n<\/p>\n<\/p>\n
    30.                       It          was              also            sought             to          be           then             contended                       that<\/p>\n
    if                  two               views                 are            possible                  then                the              construction               of<\/p>\n
    Section                        115JB                          Explanation                      1            (iv)               considering                          the<\/p>\n
                                                                                                        ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>
\n                                             -36-<\/span><\/p>\n
    decided             law,                the          view          in         favour           of                    the                  assessee<\/p>\n
    should                  be        accepted.                        The              question               is             whether            there<\/p>\n
    are          two                views         possible.                  In          our        opinion,                     no               two<\/p>\n
    views             are             possible.                      The          only         view                      as                  explained<\/p>\n
    earlier      is          that         the            MAT                company                are              entitled            to         the<\/p>\n
    same              deduction                    of                 export             profits                     under                     Section<\/p>\n
    80HHC               as                any           other         company                involved               in        export                in<\/p>\n
    terms of section 80 HHC (1B). Once that be the<\/p>\n
    case, this argument is also devoid of merit.<\/p>\n
\n\n\n\n\n                                                               \n    31.                Having               so                  answered,          in               our                   opinion,                this\n\n    appeal             will         have\n                                     ig            to           be         allowed.                      The             questions                  of\n\n    law         as               farmed             will         have        to         be               answered                  in              the\n\n<\/pre>\n
    negative in favour of the revenue and against the<\/p>\n
    assessee.\n<\/p>\n<\/p>\n
    32. Appeal disposed of accordingly.<\/p>\n
                      (R.S.MOHITE, J.)                                                (F.I.REBELLO, J.)<\/p>\n
                                                                                     ::: Downloaded on – 09\/06\/2013 14:35:27 :::<\/span>\n <\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Aayakar Bhavan vs 98 on 7 May, 2009 Bench: F.I. Rebello, R.S. Mohite -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1005 OF 2008 The Commissioner of Income Tax-9 ) Aayakar Bhavan, M.K. Road, ) Mumbai 400 020. ).. Appellant Versus M\/s. Ajanta […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-42884","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAayakar Bhavan vs 98 on 7 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aayakar-bhavan-vs-98-on-7-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aayakar Bhavan vs 98 on 7 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/aayakar-bhavan-vs-98-on-7-may-2009\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-05-06T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-03-23T17:56:47+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"37 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Aayakar Bhavan vs 98 on 7 May, 2009\",\"datePublished\":\"2009-05-06T18:30:00+00:00\",\"dateModified\":\"2017-03-23T17:56:47+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009\"},\"wordCount\":6892,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/aayakar-bhavan-vs-98-on-7-may-2009\",\"name\":\"Aayakar Bhavan vs 98 on 7 May, 2009 - 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